Demurrer
GM argues that this cause of action is barred by the economic loss rule. The economic loss rule does not apply to limit recovery for intentional tort claims like fraud. (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at p. 38.) A plaintiff may assert an independent claim of fraudulent concealment in the performance of a contract. (Ibid.) “A plaintiff may assert a tort claim for fraudulent concealment based on conduct occurring in the course of a contractual relationship, if the elements of the cause of action can be established independently of the parties' contractual rights and obligations and the tortious conduct exposes the plaintiff to a risk of harm beyond the reasonable contemplation of the parties when they entered into the agreement.” (Ibid.)
3. Conclusion and Order The demurrer is OVERRULED. Plaintiff’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.
4. 25CV002397, Gelsinger v. Alliant Specialty Insurance Services
Defendant Alliant Specialty Insurance Services dba Tribal First (“Tribal First”) demurs to the Third Amended Complaint (“TAC”) of Plaintiff Sarah Gelsinger (“Plaintiff”) for failure to state facts sufficient to constitute a cause of action. Tribal First argues each claim is brought under the Fair Employment and Housing Act (“FEHA”), which applies only to employers or entities that engage in employment-related conduct, and Plaintiff has not alleged, and cannot allege that Tribal First was her employer, exercised any control over the terms or conditions of her employment, or engaged in any conduct regulated by FEHA. The demurrer is SUSTAINED without leave to amend.
1. Third Amended Complaint The TAC alleges Plaintiff Sarah Gelsinger is a disabled 47-year old woman who managed the Starbucks inside Graton Rancheria Casino. On May 6, 2022, she fell and broke her knee on the job. (TAC, ¶7.) She filed a workers’ compensation claim with Graton’s insurance carrier, Tribal First. Plaintiff’s worker’s compensation doctor, Jessica Rose Bruso, D.O., placed her on medical leave from May 7 through May 10, 2022. (Id., ¶8.) Dr. Brusso sent her medical documentation to the Tribal First claims administrator assigned to her case. (Ibid.)
Plaintiff returned to work performing light duties from May 11, 2022, to January 2023, which consisted mostly of administrative duties. (Ibid.) Dr. Bruso released Plaintiff to return to work full duty effective January 12, 2023. (Ibid.) On May 16, 2023 Dr. Bruso sent Tribal First’s claims administrator a notice indicating Plaintiff would need further follow up treatment for her work related injury, including: physician visits as needed; anti-inflammatory medication as needed; physical therapy treatment as needed for flare-ups; bracing and other durable medical equipment; and, orthopedic follow up care to consider surgical intervention. (Id., ¶10.)
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Graton terminated Plaintiff’s employment on June 23, 2023, for allegedly vague pretextual reasons related to performance. (Id., ¶11.) Plaintiff alleges Tribal First colluded with and aided and abetted Graton to take adverse employment actions against Plaintiff, including terminating Plaintiff’s employment after her treating physician notified them that (1) Plaintiff was released to return to work full-duty, but (2) had a permanent disability, and (3) would require future medical care including possible surgery, for which Tribal First as Graton’s insurer would be liable. (Id., at ¶11.)
Plaintiff further alleges that Tribal First and Graton took the aforementioned adverse employment actions because they both felt it was an opportune time to rid themselves of this disabled employee. (Ibid.) For example, Graton knew it could terminate Plaintiff’s employment without being accused of violating Plaintiff’s work restrictions since her doctor had just released her to return to work full-duty, and Tribal First knew 8
that, as Graton’s insurer, it would not be exposed to additional liability should Plaintiff return to work and experience a re-injury or new injury. (Ibid.) Plaintiff alleges causes of action for: (1) Disability Discrimination (Gov. Code §12940(a)); (2) Failure to Provide a Reasonable Accommodation (Gov. Code §12940(m); (3) Failure to Engage in a Timely, Good Faith Interactive Process (Gov. Code §12940(n)); and (4) Retaliation for Requesting Reasonable Accommodation (Gov. Code §12940(h),(m)(2).
2. FEHA As relevant here, Government Code section 12940 makes it an unlawful employment practice for an employer to discharge or discriminate against an employee due to a physical disability if the employee, with reasonable accommodations, can perform the essential duties of the position. The TAC does not allege that Tribal First employed Plaintiff. Rather, it alleges that Tribal First, who administered workers compensation insurance benefits on behalf of Graton, affected Plaintiff’s employment by influencing Graton’s decision to terminate Plaintiff. a.
Employer’s Agents The definition of an “employer” under the FEHA includes, in part, “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly. (Gov. Code section 12926(d).) Accordingly, a business entity acting as an agent of an employer can be held directly liable as an employer for employment discrimination in violation of the FEHA in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA-regulated activities on behalf of an employer. (Raines v.
U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 291.) Plaintiff’s first cause of action is based upon allegations she was discharged because of her physical disability. There are no allegations that Tribal First discharged Plaintiff. While the TAC alleges Tribal First may have influenced Graton’s decision, there are no allegations that it acted on Graton’s behalf to evaluate Plaintiff’s job performance or otherwise determine whether her employment with Graton’s Starbucks should be terminated.
Plaintiff’s second cause of action alleges that she was not provided a reasonable accommodation for her physical disability. Plaintiff’s third cause of action is based upon alleged failure to engage in a timely, good faith interactive process. Plaintiff’s fourth cause of action alleged she was retaliated against, by having her employment terminated, for requesting an accommodation. Again, there are no allegations that Tribal First was acting as Graton’s agent and had any involvement in determining whether Plaintiff could be provided a reasonable accommodation, was required to engage in any interactive process with Plaintiff on Graton’s behalf, or was involved on Graton’s behalf in determining whether Plaintiff’s employment should be terminated.
In opposition, Plaintiff appears to argue that providing workers’ compensation benefits itself is a FEHA-regulated activity. Plaintiff cites “Vasquez v. Largo Concrete, Inc. 2025 Cal. Super. LEXIS 37195 at pp 8-9.” This court cannot locate any case entitled Vasquez v. Largo Concrete. Plaintiff cites no case holding a workers compensation insurer is liable under the FEHA for the conduct of the employer. Plaintiff also argues that Tribal First disregards that FEHA “explicitly regulates medical examinations and the delivery of healthcare services, the exact nature of the conduct that gave rise to liability for US Healthworks’ third-party agent in Raines.” (Oppo., 2:26-3:1.)
The allegations in Raines are that applicants were offered jobs contingent upon passing a preemployment medical screening, which was conducted by U.S. Healthworks Medical Group (“USHW”) as an agent of the prospective employers. (Raines, supra, at p. 274.) During those examinations, USHW allegedly required applicants to answer invasive medical questions unrelated to their ability to perform job-related functions. (Ibid.) When that plaintiff did not respond to one
question, the exam was terminated and the offer of employment was withdrawn. (Ibid.) There are no similar allegations in the TAC. Plaintiff argues Tribal First controlled which medical providers she could see, decided whether to accept or deny her claim and requests for medical treatment, received and memorialized her work restrictions, communicated them to Graton, and maintained detailed knowledge of her disability and medical condition throughout her employment. None of these activities support finding it was Tribal First, on Graton’s behalf, who terminated Plaintiff, failed to reasonably accommodate her disability, failed to engage in the interactive process, or who retaliated against her by terminating her employment for requesting an accommodation.
It appears Plaintiff’s complaint against Tribal Health is that its decisions impacted her ability to recover from her injury: “These decisions were inextricably intertwined with Ms. Gelsinger's rate of recovery, her ability to achieve maximal medical improvement, her level of permanent impairment, and ultimately her ability to return to work.” (Oppo., 3:7-9.) No case is cited that administering healthcare equates to acting as an agent of an employer for the purpose of employer related decisions in terminating an employee or in the failure to provide a reasonable accommodation or engage in the interactive process.
Nor is there any case cited establishing that transmitting medical information to an employer makes the one transmitting that information liable for any decision an employer makes based upon that information. Plaintiff also argues that Tribal First dismisses the “collusion allegations.” However, there is no basis for liability for collusion of a violation of FEHA if there is no employment practice taken on behalf of Graton by Tribal First. While there might be some other theory under which Tribal First may be liable, the FEHA does not apply.
3. Conclusion and Order Plaintiff has been given a chance to amend her complaint to state a valid cause of action against Tribal First for violation of the FEHA. Her TAC continues to fail in this regard. Nor has she shown any possibility that she could amend her complaint to state a valid cause of action against Tribal First for violation of the FEHA. Accordingly, the demurrer is SUSTAINED without leave to amend. Tribal First’s counsel is directed to submit a written order to the court consistent with this ruling and in compliance with Cal. Rules of Court, Rule 3.1312.
5. 25CV03106, Gentry v. Scarritt
Plaintiff Cindy Gentry (“Plaintiff”) moves for leave to file a First Amended Complaint adding a fifth cause of action for intentional infliction of emotional distress and additional factual allegations concerning Defendant’s threats, intimidation, and acts of violence toward Plaintiff that came to light during Plaintiff’s deposition. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (CCP § 473(a)(1).) Judicial policy dictates the court’s discretion be applied liberally to allow amendments. (Nestle v.
Santa Monica (1972) 6 Cal. 3d 920, 939.) It is only when there is prejudice to the other side that cannot be alleviated by imposing conditions on the moving party that leave should not be allowed. (Hirsa v. Sup.Ct. (Vickers) (1981) 118 Cal. App. 3d 486, 490.) Arguments regarding the validity of the proposed amended complaint, such as that a cause of action is barred by the statute of limitations, are not considered on a motion for leave. (See Kittredge Sports Co. v. Sup.Ct. (Marker, U.S.A.) (1989) 213 Cal.
App. 3d 1045, 1048.) In opposition, Defendant Curt Scarritt (“Defendant”) argues allowing Plaintiff to amend now leaves Defendant with insufficient time to conduct discovery on the issues raised in the new 10